Victims will have the right to tell the court how they have been affected by a crime as part of a major set of reforms announced by the Justice Secretary. They will also receive better information and support with the introduction of a nationwide Victims’ Information Service, making it easier for victims by establishing a single source of information and help.
What are the changes the government is proposing in relation to victims’ rights?
The proposed measures aim to guarantee for the first time that victims of crime have certain legal rights. The package of reforms announced by the government includes:
- the legal right for most victims to make a victim personal statement (VPS)
- the establishment of a new nationwide Victims’ Information Service, and;
- plans to make it a mandatory requirement that all publicly-funded advocates have specialist training before they are instructed in serious sexual offences cases
The government also intends a national roll-out of a pilot scheme currently running in three crown courts, which enables cross-examination of child witnesses before trial, away from court. Cross-examination by defence advocates and co-defendants’ advocates is filmed and subsequently shown during the trial.
Modernisation of courts is also to be tackled, with upgraded facilities such as separate waiting areas for victims. Subject to consultation, there will also be a new regime for paying compensation to victims of crime, which would allow victims to obtain a proportion of their compensation up front.
Are the changes likely to be popular?
Proposals to support vulnerable victims and witnesses will invariably be met with public support. Measures such as the Victims’ Information Service and the modernisation of court facilities are likely to be uncontroversial with practitioners. However, defence lawyers are likely to question the necessity of the requirement for specialist training for those advocates instructed in cases involving serious sexual offences, and also the practicality of the proposal to undertake cross-examination of child witnesses before trial.
What prompted these reforms?
There has been a shift in recent years towards emphasising the victim in criminal proceedings, as demonstrated by the publication of the Victims’ Code in 2013. This followed the appointment of a Victims’ Minister and the creation of the role of Victims’ Commissioner in 2012. Public opinion tends to be strongly in favour of measures to support the victims and as such there is political motivation to reflect this in policy.
Additionally, recent high-profile cases, such as the Rochdale child abuse inquiry which required vulnerable children to give evidence as victims and witnesses, have focused attention on the experience of victims and witnesses in the criminal justice system. There was also widespread reporting of the death of Frances Andrade, who gave evidence against her former music teacher who was accused of sexual assault. She committed suicide following cross-examination by the defence. The defendant was subsequently convicted of sexual assault.
Do you think they will be successful in achieving their aims?
The main aim of the proposals is to improve the experience of victims and witnesses in the criminal justice system. Improving the information and facilities available to victims and witnesses is likely to go some way towards this aim. However, it will be some time before these particular measures are sufficiently established in order to effectively measure any improvement.
It will be more difficult to measure the success of the proposals which are designed to make changes to the cross-examination of witnesses and victims. Although there is recognition that the experience of being cross-examined is highly stressful for a witness, it is a fundamental part of a fair trial and as such cannot be avoided. It is unclear at present what the proposed specialist training for advocates instructed in cases involving serious sexual offences will involve – but in any event the vast majority of advocates undertaking these cases are already highly experienced practitioners so the imposition of training is unlikely to have a significant impact on how victims and witnesses are cross-examined.
Additionally, it is not yet clear whether pre-recording cross-examination of child witnesses will improve their experience. The fundamental issue with cross-examination is that the defence advocate must put their case to the witness and in most cases test the witness’s recollection and credibility. This is likely to be a challenging experience for a child witness regardless of the location.
Could there be any unintended consequences?
It is curious that the requirement to undertake specialist training will only extend to publicly-funded advocates. Under the current proposals, privately-instructed advocates need not undertake this training at all. Recent cases involving high-profile defendants accused of historic sexual offences have mostly involved privately-funded defence teams. In theory, these advocates would not be required to undertake the specialist training, but defendants entitled to a defence funded by legal aid would. There does not seem to be any logical reason for this distinction.
In practice, the requirement for specialist training is likely to lead, at least in the short term, to a shortage of suitably qualified advocates available to be instructed by defendants in cases involving serious sexual offences. This is likely to lead to a delay in cases being heard which will impact adversely on victims, witnesses and defendants. A further unintended consequence may occur where defendants are remanded in custody awaiting trial for offences of this sort. If delay to the trial occurs through no fault of the defendant then arguably the defendant could apply to be released on bail. Whether bail is granted will be a matter for the court, but it would be undesirable from the government’s point of view for bail to be granted under those circumstances.
The proposal to use recorded pre-trial cross examination is intended to improve the experience of child witnesses – however, in practice, this may not be possible or desirable. The service of evidence and the disclosure of unused material is a process that often continues until the first day of trial, and sometimes beyond. It is not clear what mechanism will be used to allow the defence to cross-examine a child witness on material served after the date of the pre-trial cross-examination session. In theory this could mean that a child witness has to undergo a further session of cross-examination during the trial, entirely defeating the purpose of the proposals.
The overall impact of VPS on sentencing is one which should be considered carefully in terms of consistency of approach. If a VPS can cause the sentence in a particular case to be increased due to evidencing the degree of harm suffered, does this mean that where a victim is unwilling to make a VPS for entirely understandable reasons, the defendant in that case is effectively receiving a more lenient sentence? The sentencing guidelines exist to ensure a consistency of sentencing practice and for that reason the impact of a VPS is a sensitive area. It would be perverse, for example, if a victim of a serious sexual offence underplayed the seriousness of the offence because of their relationship with the defendant, and that that was taken into account in sentencing.
It would also be concerning if victims felt under pressure from the prosecuting authorities to draft and/or read a VPS. While prosecuting authorities may see it as being strongly in the public interest for a victim to do so, it may not be at all in the victim’s personal interest to do so and this should be respected.
What should lawyers take note of?
Defence lawyers should advise their client of the proposed changes, including the right of the victim to read the VPS themselves if they choose to do so. If the changes are implemented, defence lawyers should also advise their clients that child victims will have the right to be cross-examined before trial, away from court. Defence lawyers must also take note that under the new proposals, if they undertake publicly-funded work on cases involving serious sexual offences, they will have to instruct advocates who have undergone the additional training proposed and may wish to consider whether they need to undergo the training themselves, if they have higher rights of audience, or if the measures are to also apply to serious sexual offences tried in the Youth Court.
What are the current trends in this area of law?
Recent high-profile cases involving allegations of serious sexual offences against vulnerable victims have focussed the public attention on the treatment of victims and witnesses in the criminal justice system. These proposals will have widespread public support on this basis, even though many of the proposals will apply to victims of all offences, not just serious sexual offences.
The government’s proposals to invest in services for victims and witnesses sits in stark contrast to the proposals to dramatically reduce the legal aid budget. While prioritising spending on victims rather than defendants will be a politically popular move, justice can only be served by having a criminal justice system which adequately serves all those involved. A high-profile miscarriage of justice arising from the cuts to legal aid could turn public opinion in favour of the protection of the rights of defendants.
Any further observations you wish to add?
The decision to use the word “victim” to describe a complainant prior to any verdict being delivered in the case will be opposed by many defence lawyers. It could arguably be seen as not adequately maintaining the neutrality of the criminal justice process.
By Vivien Cochrane, a solicitor at Kingsley Napley (Interviewed by Kate Beaumont).
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
First published on Lexis®PSL.